- 943 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

The Cattle National Bank & Trust Co., appellee, v. 

Robert Watson and Shona Watson, appellees, and

Bill Watson and Rebecca Watson, appellants.

The Cattle National Bank & Trust Co., appellee, v. 

Robert Watson, appellant and cross-appellee, 

Shona Watson, appellee and cross-appellee, 

and Bill Watson and Rebecca Watson, 

appellees and cross-appellants.

___ N.W.2d ___

Filed June 24, 2016. Nos. S-15-512, S-15-872.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings 

and admitted evidence show that there is no genuine issue as to any 

material facts or as to the ultimate inferences that may be drawn from 

the facts and that the moving party is entitled to judgment as a matter 

of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Contracts: Judgments: Appeal and Error. The meaning of a contract 

is a question of law, in connection with which an appellate court has an 

obligation to reach its conclusions independently of the determinations 

made by the court below.

4. Actions: Parties: Judgments: Appeal and Error. Neb. Rev. Stat. 

§ 25-1315(1) (Reissue 2008) requires, in cases with multiple claims 

or parties, an explicit adjudication with respect to all claims or parties 

or, failing such explicit adjudication of all claims or parties, an express 

determination that there is no just reason for delay of an appeal of an 

order disposing of less than all claims or parties and an express direction 

for the entry of judgment as to those adjudicated claims or parties.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/24/2016 09:09 AM CDT
- 944 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

5. Summary Judgment: Proof. A party moving for summary judgment 

must make a prima facie case by producing evidence to demonstrate that 

the movant is entitled to judgment if the evidence were uncontroverted 

at trial.

6. ____: ____. Once the moving party makes a prima facie case, the burden to produce evidence showing the existence of a material issue of 

fact that prevents judgment as a matter of law shifts to the party opposing the motion.

7. Contracts: Guaranty: Debtors and Creditors: Words and Phrases. A 

guaranty is a contract by which the guarantor promises to make payment 

if the principal debtor defaults.

8. Contracts: Guaranty. A guaranty is interpreted using the same general 

rules as are used for other contracts.

9. Contracts: Guaranty: Appeal and Error. To determine the obligations 

of the guarantor, an appellate court relies on general principles of contract and guaranty law.

10. Guaranty: Liability. When the meaning of a guaranty is ascertained, or 

its terms are clearly defined, the liability of the guarantor is controlled 

absolutely by such meaning and limited to the precise terms.

11. Actions: Contracts: Guaranty. A suit on a contractual guaranty presents an action at law.

12. Actions: Parties. The purpose of Neb. Rev. Stat. § 25-301 (Reissue 

2008) is to prevent the prosecution of actions by persons who have no 

right, title, or interest in the cause.

13. Actions: Parties: Standing. The focus of the real party in interest 

inquiry is whether the party has standing to sue due to some real interest 

in the cause of action, or a legal or equitable right, title, or interest in the 

subject matter of the controversy.

14. ____: ____: ____. The purpose of the real party in interest inquiry is to 

determine whether the party has a legally protectable interest or right in 

the controversy that would benefit by the relief to be granted.

15. Declaratory Judgments. In Nebraska, a party may not simply move the 

court for a declaratory judgment.

16. Right to Counsel: Effectiveness of Counsel. A self-represented litigant 

will receive the same consideration as if he or she had been represented 

by an attorney, and, concurrently, that litigant is held to the same standards as one who is represented by counsel.

17. Judgments: Garnishment: Jurisdiction. A garnishment in aid of execution issued before judgment is without jurisdiction and void, and not 

merely irregular.

18. Judgments: Debtors and Creditors. An execution issued without a 

judgment to support it is void.
- 945 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

19. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of 

whether the issue is raised by the parties.

20. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction over an appeal, there must be a final order or final 

judgment entered by the court from which the appeal is taken.

21. Final Orders: Appeal and Error. There are three types of final orders 

that may be reviewed on appeal under the provisions of Neb. Rev. Stat. 

§ 25-1902 (Reissue 2008): (1) an order which affects a substantial right 

in an action and which in effect determines the action and prevents a 

judgment, (2) an order affecting a substantial right made during a special 

proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.

22. Final Orders: Words and Phrases. A substantial right under Neb. Rev. 

Stat. § 25-1902 (Reissue 2008) is an essential legal right.

23. Final Orders: Appeal and Error. A substantial right is affected if an 

order affects the subject matter of the litigation, such as diminishing a 

claim or defense that was available to an appellant before the order form 

which an appeal is taken.

24. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 

(Reissue 2008) include those legal rights that a party is entitled to 

enforce or defend.

25. Summary Judgment: Claims: Garnishment. An interlocutory order 

granting summary judgment on fewer than all of the claims in an action 

cannot serve as the judgment required for an execution or garnishment 

in aid of execution.

26. Final Orders. Since Neb. Rev. Stat. 25-1315(1) (Reissue 2008) is substantially similar to Fed. R. Civ. P. 54(b), federal cases construing rule 

54(b) may be used for guidance in determining when a decision is a 

“final judgment” for purposes of § 25-1315(1).

27. Appeal and Error. Appellate courts do not generally consider arguments and theories raised for the first time on appeal.

28. Judgments: Collateral Attack. A void order may be attacked at any 

time in any proceeding.

Appeals from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Final orders in No. S-15-512 

vacated. Judgment in No. S-15-872 affirmed.

Bill Watson and Rebecca Watson, pro se, in Nos. S-15-512 

and S-15-872.
- 946 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

John M. Guthery, of Perry, Guthery, Haase & Gessford, P.C., 

L.L.O., for appellee The Cattle National Bank & Trust Co., in 

Nos. S-15-512 and S-15-872.

Robert Watson, pro se, in No. S-15-872.

Justin J. Knight, of Perry, Guthery, Haase & Gessford, 

P.C., L.L.O., and Michael C. Cox, of Koley Jessen, P.C., 

L.L.O., for appellee The Cattle National Bank & Trust Co., in 

No. S-15-872.

Heavican, C.J., Wright, Connolly, Cassel, and Kelch, JJ.

Cassel, J.

I. INTRODUCTION

A bank’s action against four guarantors on their respective 

personal guaranties of an entity’s debts has generated three 

appeals by various guarantors. The first appeal was taken after 

the district court granted the bank’s motions for summary judgment but failed to adjudicate a cross-claim. The second appeal 

was taken from execution and garnishment proceedings that 

occurred while the first appeal was pending. Because of the 

undisposed cross-claim, the Nebraska Court of Appeals dismissed the first appeal. One guarantor then moved to vacate 

the summary judgment order. The district court denied the 

motion and simultaneously dismissed the pending cross-claim. 

The third appeal followed. We consider it first.

The third appeal raises three issues. First, were the guarantors bound by the second page of the document? They were, 

because the first page incorporated the second page and defined 

“Undersigned” to include them. Second, can a guarantor assert 

defenses arising from the entity’s underlying debt? For various 

reasons, he cannot. Finally, did the district court err in failing 

to vacate the summary judgment order? Because the guarantor 

conflated the order’s initial lack of finality with its validity, the 

court correctly overruled the motion. In the third appeal, we 

affirm the district court’s judgment.
- 947 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

In the second appeal, the guarantors now argue a new 

ground—that the execution and garnishment proceedings 

were void because they were commenced prior to judgment. 

Although the interlocutory order granting summary judgment 

motions was not void, it was not a “judgment” sufficient to 

support execution or garnishment in aid of execution. The 

interlocutory order ultimately became part of a judgment. But 

this did not validate the void process. We therefore vacate the 

void execution and garnishments.

II. BACKGROUND

1. Guaranties

The action proceeded against four members of the Watson 

family—Robert Watson, Shona Watson, Bill Watson, and 

Rebecca Watson (collectively the Watsons). Robert, Shona, and 

Rebecca were members of Reserve Design, LLC (Reserve), 

a construction business. In 2007, the Watsons signed identical personal guaranties for the debts that Reserve owed to 

The Cattle National Bank & Trust Co. (Bank). The guaranties 

expressly included Reserve’s future indebtedness.

Each of the guaranties consisted of a single sheet of paper 

with print on both sides. The pages were labeled “page 1 of 2” 

and “page 2 of 2.” The Watsons’ signatures appear at the bottom of page 1, and there is no dispute that they signed page 1. 

Although page 2 included what appear to be lines for initials, 

none of the Watsons initialed or otherwise signed page 2.

Several provisions on page 1 are relevant. First, a definition stated: “‘Undersigned’ shall refer to all persons who sign 

this guaranty, severally and jointly.” This definition appeared 

immediately below the last signature line and within its width. 

The term “Undersigned,” appearing in the same initially capitalized form, was used throughout the document. Second, a 

provision on the first page stated:

[T]he Undersigned guarantees to [the Bank] the payment 

and performance of each and every debt, liability and 

obligation of every type and description which [Reserve] 
- 948 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

may now or at any time hereafter owe to [the Bank] 

(whether such debt, liability or obligation now exists or is 

hereafter created or incurred[)].

Third, the first page provided that the liability of “the 

Undersigned” was “UNLIMITED.” Finally, page 1 stated, in 

bold type: “This guaranty includes the additional provisions on 

page 2, all of which are made a part hereof.”

Page 2 consisted of eight additional provisions. One pertained to the waiver of defenses. It stated, in relevant part:

The Undersigned waives any and all defenses, claims and 

discharges of [Reserve], or any other obligor, pertaining 

to Indebtedness, except the defense of discharge by payment in full. Without limiting the generality of the foregoing, the Undersigned will not assert, plead or enforce 

against [the Bank] any defense of . . . fraud . . . which 

may be available to [Reserve] or any other person liable 

in respect of any Indebtedness . . . .

Another provided that the Bank could “enter into transactions 

resulting in the creation or continuance of Indebtedness, without any consent or approval by the Undersigned and without 

any notice to the Undersigned.”

2. Loan

In 2010, 3 years after the guaranties had been given to 

the Bank, the Bank loaned Reserve $40,000 (loan). Robert 

signed a loan agreement on behalf of Reserve as “Rob Watson, 

Manager.” And he extended the loan’s maturity date on three 

later occasions, signing each extension as “Rob Watson, 

Manager.” Robert claims that the Bank’s loan officer promised him that if he signed the loan on behalf of Reserve, the 

officer would later rewrite it as a third mortgage for Robert’s 

personal residence. The loan was never rewritten as Robert’s 

personal obligation.

In 2012, Reserve failed to make a required payment on the 

loan, and the Bank declared default and demanded payment 

from the Watsons on the guaranties. The Watsons refused to 
- 949 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

pay. The Bank filed a complaint for breach of guaranty, naming 

the Watsons as defendants.

Robert’s amended answer included a counterclaim for fraud 

in the inducement. He claimed that he was fraudulently induced 

to sign the loan in his capacity as manager of Reserve. He also 

claimed that he was not bound by the terms on page 2 of the 

guaranty, because he did not “undersign” it. Bill and Rebecca’s 

answer asserted numerous defenses, but it did not assert the 

absence of signatures or initials on page 2. Shona’s answer 

included a cross-claim against Robert.

3. Summary Judgment

Robert and the Bank each filed motions for summary 

judgment as to the breach of guaranty claims and Robert’s 

counterclaim. One of Robert’s motions included a motion 

“for Declaratory Judgment on contractual effect of Personal 

Guarantees.”

The district court sustained the Bank’s motions and overruled Robert’s motions in an October 17, 2014, order (hereinafter summary judgment order). Regarding the Bank’s claims for 

breach of guaranty, it observed that there was no dispute that 

the Watsons all signed the guaranties for the debt of Reserve. 

And it noted that the guaranties provided that the Bank could 

enter transactions resulting in the creation or continuance of 

indebtedness without the Watsons’ notice or approval.

Regarding Robert’s counterclaim for fraud in the inducement, the court first concluded that Robert was not a real party 

in interest, because Reserve and the Bank were the only two 

parties to the loan agreement. Therefore, because Reserve was 

not a party to the action, Robert could not raise a claim for 

fraud on its behalf. Second, it concluded that even if Reserve 

was a party to the action, the defense of fraud in the inducement was not available to the Watsons, because it was waived 

under the terms on page 2. Finally, the court concluded that 

Robert’s motion for a declaratory judgment was improper, 

because the request was not made in the pleadings.
- 950 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

The court entered “judgment” for the Bank “against the 

[Watsons] jointly and severally in the amount of $30,000 plus 

interest of $1,839.45.” The summary judgment order did not 

address Shona’s cross-claim against Robert, and it did not 

direct the entry of final judgment pursuant to Neb. Rev. Stat. 

§ 25-1315 (Reissue 2008).

Robert, Bill, and Rebecca filed the first appeal. It was docketed in the Court of Appeals as case No. A-14-1028.

4. Execution and Garnishment

While the first appeal was pending, the Bank apparently 

filed requests for writs of execution and garnishment, but its 

requests are not in our record. The district court appears to 

have issued the requested writs, but they, too, are not in our 

record. In response, Robert and Bill filed objections to garnishment and Bill and Rebecca filed an objection to execution. 

These filings are also not in our record.

The court overruled the objections in two June 8, 2015, 

orders, which are in our record. One concluded that the Bank 

could proceed with the garnishments, because Robert and Bill 

failed to show that they did not owe the debts in question. 

And the other concluded that the Bank could proceed with the 

execution, because Bill and Rebecca made no showing that 

their property was exempt. According to the bill of exceptions, 

there was no discussion at the hearing regarding whether the 

summary judgment order was appealable or whether it was 

a “judgment” sufficient to support a writ of execution or 

garnishment.

Bill and Rebecca quickly filed the second appeal. It is 

docketed in this court as case No. S-15-512. Although the 

parties argue that an execution sale of a vehicle owned by 

Bill and Rebecca took place after June 8, 2015, neither the 

writ of execution nor any return of the writ is included in 

our record.

To the extent shown in our record, the events that followed 

are summarized below:
- 951 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

• July 8, 2015: Court of Appeals dismissed the first appeal,

concluding that the summary judgment order was not final 

and appealable, because Shona’s cross-claim against Robert 

was still pending.

• July 17, 2015: Robert filed motion in district court to vacate

the summary judgment order.

• August 25, 2015: District court dismissed Shona’s crossclaim and overruled Robert’s motion to vacate.

• September 17, 2015: Robert filed notice of the third appeal,

which was taken from the summary judgment order and the 

order overruling his motion to vacate. The third appeal is 

docketed in this court as case No. S-15-872.

• September 18, 2015: Bill and Rebecca filed a notice of appeal

from the summary judgment order. Our clerk treated this as a 

second notice of appeal1 in the third appeal.

We moved the second and third appeals to our docket,2 and 

we consolidated them for argument and disposition.

III. ASSIGNMENTS OF ERROR

1. Second Appeal (No. S-15-512)

Bill and Rebecca assign that the district court erred by 

“[i]ssuing an order to execute and garnish on the statutorily 

deficient” summary judgment order.

2. Third Appeal (No. S-15-872)

Robert assigns, restated and consolidated, that the district 

court erred in (1) finding that there was no genuine issue of 

material fact regarding whether he is bound by the terms on 

page 2, (2) failing to consider his defense of fraud, (3) failing 

to find that the Bank has unclean hands, (4) finding that he 

was not a real party in interest in his counterclaim, (5) failing to consider his request for a declaratory judgment, and (6) 

failing to vacate the summary judgment order after the Court 

1 See Neb. Ct. R. App. P. § 2-101(C) (2014).

2 Neb. Rev. Stat. § 24-1106(3) (Supp. 2015).
- 952 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

of Appeals, in Robert’s words, “found the [o]rder was statutorily insufficient and non-final.”

On cross-appeal, Bill and Rebecca assign that the district 

court erred in (1) finding that there was no genuine issue 

of material fact regarding whether they were bound by the 

provisions on page 2 of the guaranty, (2) not finding that the 

Bank was required to give them “notice of further obligation 

under the personal guaranties,” and (3) finding that they are 

obligated on the loan, even though they were not notified 

of it.

IV. STANDARD OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from the 

facts and that the moving party is entitled to judgment as a 

matter of law.3 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence.4

[3] The meaning of a contract is a question of law, in connection with which an appellate court has an obligation to 

reach its conclusions independently of the determinations made 

by the court below.5

V. ANALYSIS

1. Third Appeal (No. S-15-872)

Because the third appeal reaches the merits of the summary 

judgment order, we address it first. In both Robert’s appeal 

and Bill and Rebecca’s cross-appeal, they contend that there 

3 Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016).

4 Id.

5 Braunger Foods v. Sears, 286 Neb. 29, 834 N.W.2d 779 (2013).
- 953 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

was a genuine issue of material fact regarding whether they 

were bound by the provisions on page 2. Robert also attacks 

the summary judgment order on other grounds and appeals 

from the denial of his motion to vacate the summary judgment order.

(a) Jurisdiction

We have jurisdiction of the third appeal. Although nearly 

a year had expired after the entry of the summary judgment 

order, it did not become final or appealable until the dismissal 

of Shona’s cross-claim.

[4] We have made it clear that § 25-1315(1) requires, in 

cases with multiple claims or parties, an explicit adjudication 

with respect to all claims or parties or, failing such explicit 

adjudication of all claims or parties, an express determination 

that there is no just reason for delay of an appeal of an order 

disposing of less than all claims or parties and an express 

direction for the entry of judgment as to those adjudicated 

claims or parties.6

Despite its terminology, the summary judgment order 

was not a “judgment,” because it failed to adjudicate the 

cross-claim. And the order clearly does not include the language which might have purported to authorize an immediate appeal.7

 When the district court dismissed Shona’s 

cross-claim, its series of orders formed a judgment—taken 

together, these orders finally determined the rights of the parties in the action.8

 Only then did the appeal time begin to run 

on the summary judgment order. And Robert’s appeal was 

clearly timely.

6 Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387 (2005).

7 See § 25-1315(1). See, also, Cerny v. Todco Barricade Co., 273 Neb. 800, 

733 N.W.2d 877 (2007) (power should be used only in infrequent harsh 

case, based on likelihood of injustice or hardship to parties of delay in 

entering final judgment as to part of case).

8 See Neb. Rev. Stat. § 25-1301(1) (Reissue 2008) (judgment is final 

determination of rights of parties in action).
- 954 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

(b) Summary Judgment

[5,6] A party moving for summary judgment must make a 

prima facie case by producing evidence to demonstrate that 

the movant is entitled to judgment if the evidence were uncontroverted at trial.9

 Once the moving party makes a prima facie 

case, the burden to produce evidence showing the existence of 

a material issue of fact that prevents judgment as a matter of 

law shifts to the party opposing the motion.10

(i) Bill and Rebecca

All of Bill and Rebecca’s assigned errors and corresponding 

arguments are based on their contention that because they did 

not sign page 2, they did not agree to the provisions on that 

page. Their first assignment argues generally that they did not 

agree to page 2, and their second and third assignments argue 

specifically that they are not bound by the waiver of notice 

provision on page 2.

The Bank argues we cannot address Bill and Rebecca’s 

assigned errors, because they did not raise the issue in their 

answer. The pleadings frame the issues to be considered on a 

motion for summary judgment.11 And an appellate court will 

not consider an issue on appeal that was not presented to or 

passed upon by the trial court.12

The Bank may be technically correct regarding the effect of 

Bill and Rebecca’s answer, but, for two reasons, it makes no 

significant difference. First, they did allege that the Bank failed 

to properly notify them of the loan. That allegation raised the 

issue of whether the Bank was required to give them notice, 

which in turn depends upon the enforceability of the waiver of 

notice on page 2.

9 Builders Supply Co. v. Czerwinski, 275 Neb. 622, 748 N.W.2d 645 (2008).

10 Id.

11 Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).

12 Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264 

(2014).
- 955 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

But more important, Robert argues in his first assignment 

of error that there is a genuine issue of material fact regarding 

whether he agreed to page 2. He explicitly raised this issue in 

his amended answer below. Thus, Robert’s first assignment of 

error squarely presents the issue.

(ii) Terms of Guaranty

Robert, Bill, and Rebecca argue that in order to agree to the 

provisions on page 2, they had to “undersign” page 2. They 

rely upon the term’s ordinary meaning but ignore the definition 

of “Undersigned” on page 1. Their argument fails.

[7-9] A guaranty is a contract by which the guarantor promises to make payment if the principal debtor defaults.13 A guaranty is interpreted using the same general rules as are used for 

other contracts.14 To determine the obligations of the guarantor, 

an appellate court relies on general principles of contract and 

guaranty law.15

[10] But when the meaning of a guaranty is ascertained, or 

its terms are clearly defined, the liability of the guarantor is 

controlled absolutely by such meaning and limited to the precise terms.16 And that is the situation here.

The district court correctly concluded that the provisions on 

page 2 were part of the guaranty. Robert, Bill, and Rebecca do 

not dispute that they signed page 1, which provided, in bold 

type, that “[t]his guaranty includes the additional provisions 

on page 2, all of which are made a part hereof.” This language 

clearly and absolutely applied to make the terms on page 2 part 

of the contract.

We have previously rejected similar arguments. In one case, 

the front of the contract at issue had a place for a signature, 

and immediately beneath the signature line, the following 

13 Braunger Foods v. Sears, supra note 5.

14 Id.

15 Id.

16 Id.
- 956 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

was printed: “‘NOTE: SEE REVERSE SIDE FOR TERMS 

AND CONDITIONS OF LEASE. ALL WARRANTIES 

DISCLAIMED.’”17 We concluded that the defendant was bound 

by the provisions on the reverse side of the contract. In another 

case, the defendant signed the front of the contract, which 

provided that he “‘purchase[d], subject to the terms and conditions set forth below and upon the reverse side hereof.’”18 The 

defendant “ignor[ed] the import of the words ‘and upon the 

reserve side hereof’” and argued that the terms on the front of 

the contract controlled.19 We rejected the defendant’s approach 

and stated that “[o]bviously, the provisions on the reverse side 

of the contract, except as they may be unenforceable in this 

state, are a part of the contract and must be so considered.”20

We reached the same conclusion in yet another case.21 There, 

the plaintiff signed the front of the contract, which included “a 

specific and conspicuous reference to the limitation of liability 

clause on the reverse side of the document.”22 But because 

of an error in transmission, the plaintiff did not receive the 

reverse side of the contract that contained the limitation of 

liability clause until 3 days after it signed the front. We concluded that the plaintiff “was clearly placed on notice that the 

clause was intended to be included in the contract” and that the 

clause was therefore part of the agreement.23

Applying our prior decisions to the facts of this case, it 

is clear that the statement on page 1 that “[t]his guaranty 

17 Oddo v. Speedway Scaffold Co., 233 Neb. 1, 3, 443 N.W.2d 596, 599 

(1989).

18 General Motors Acceptance Corp. v. Blanco, 181 Neb. 562, 564, 149 

N.W.2d 516, 518 (1967) (emphasis omitted).

19 Id. at 566, 149 N.W.2d at 519.

20 Id.

21 Ray Tucker & Sons v. GTE Directories Sales Corp., 253 Neb. 458, 571 

N.W.2d 64 (1997).

22 Id. at 464, 571 N.W.2d at 69.

23 Id.
- 957 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

includes the additional provisions on page 2, all of which 

are made a part hereof” was sufficient to incorporate the 

provisions on page 2 into the contract. Page 2 was part of 

the guaranty, and Robert, Bill, and Rebecca are bound by 

its provisions.

Robert, Bill, and Rebecca’s arguments regarding the general meaning of the term “Undersigned” do not change the 

outcome. They note that the provisions on page 2 refer to “the 

Undersigned,” and they argue that because they did not “undersign” page 2, none of its provisions apply to them. They rely 

upon general law defining “undersigned” as “[s]omeone whose 

name is signed on a document, esp. at the end.”24

Their arguments fail, because the definition of 

“Undersigned” on page 1 controls. Immediately below the 

signature lines on page 1 appears the following definition: 

“‘Undersigned’ shall refer to all persons who sign this guaranty, severally and jointly.” Four signature lines were printed. 

The second line had the same width as the first and was placed 

immediately below it. The third and fourth lines followed in 

like manner. The definition was placed within the width of 

the last signature line and immediately below it. To any ordinary reader, this content and placement made it plain that by 

signing on one of the lines on page 1, they were expressly 

included within the definition of “Undersigned.” And on their 

respective guaranties, that was exactly where Robert, Bill, 

and Rebecca signed. Throughout pages 1 and 2, the word 

“Undersigned” always appears in the same initially capitalized form as the definition. This also conveys to an ordinary 

reader that the same meaning applies to the term throughout 

the document. Clearly, the meaning of “Undersigned” on 

both pages is controlled by the definition on page 1. Robert, 

Bill, and Rebecca all signed the guaranty, and therefore, they 

constitute “the Undersigned” despite having not signed or 

initialed page 2.

24 Black’s Law Dictionary 1758 (10th ed. 2014).
- 958 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

Because page 2 was part of the guaranty, all of Bill and 

Rebecca’s assignments of error lack merit. We turn to the additional issues raised in Robert’s appeal.

(iii) Defense of Fraud

In this assignment, Robert asserts that the court failed 

to consider his affirmative defense that he was fraudulently 

induced to sign the loan document regarding the Bank’s loan to 

Reserve. And he argues that the court should have found that 

the loan agreement was unenforceable because of the alleged 

fraud. At oral argument, he reiterated that he was not asserting 

any fraud with respect to the guaranty. The court did not specifically address this defense in its order, but it did state that 

“no issues of material fact exist with reference to any of [the 

Watsons’] defenses.”

Because Robert waived all defenses belonging to Reserve, 

the court correctly concluded that there is no genuine issue 

of material fact as to this defense. The guaranty provided, in 

relevant part: “The Undersigned waives any and all defenses, 

claims and discharges of [Reserve] . . . . Without limiting the 

generality of the foregoing, the Undersigned will not assert, 

plead or enforce against [the Bank] any defense of . . . fraud 

. . . which may be available to [Reserve] . . . .” The terms of 

the guaranty are clear, and Robert cannot assert a defense that 

he expressly waived.25 This assignment is meritless.

(iv) Unclean Hands

Robert claims that the district court should have concluded 

that the Bank has unclean hands, because it fraudulently 

induced him to sign the loan agreement. This formulation also 

lacks merit.

25 See, 38A C.J.S. Guaranty § 125 (2008); Gateway Companies, Inc. v. 

Vitech America, Inc. 33 Fed. Appx. 578, 580 (2d Cir. 2002) (observing 

that “[w]hen guarantors have specifically disclaimed all defenses to the 

enforcement of their guaranty, they are not allowed thereafter to raise a 

defense of fraud in the inducement”).
- 959 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

Under the doctrine of unclean hands, a person who comes 

into a court of equity to obtain relief cannot do so if he or she 

has acted inequitably, unfairly, or dishonestly as to the controversy in issue.26 The doctrine is specifically predicated upon 

equitable rights, and is enforceable against a party seeking 

equitable relief.27

[11] But a suit on a contractual guaranty presents an action 

at law, not in equity.28 The doctrine of unclean hands has no 

application here. This assignment is meritless.

(v) Counterclaim

Robert claims that in granting the Bank’s motion for summary judgment as to his counterclaim for fraudulent inducement, the district court erred in finding that he was not a real 

party in interest. We disagree.

[12-14] Nebraska’s real party in interest statute provides 

that “[e]very action shall be prosecuted in the name of the real 

party in interest . . . . ”29 The purpose of that section is to prevent the prosecution of actions by persons who have no right, 

title, or interest in the cause.30 The focus of the real party in 

interest inquiry is whether the party has standing to sue due to 

some real interest in the cause of action, or a legal or equitable 

right, title, or interest in the subject matter of the controversy.31

The purpose of the inquiry is to determine whether the party 

has a legally protectable interest or right in the controversy 

that would benefit by the relief to be granted.32

Robert is not a real party in interest to prosecute the fraudulent inducement claim, because the claim belongs to Reserve. 

26 Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007).

27 Id.

28 See Stauffer v. Benson, 288 Neb. 683, 850 N.W.2d 759 (2014).

29 Neb. Rev. Stat. § 25-301 (Reissue 2008).

30 Manon v. Orr, 289 Neb. 484, 856 N.W.2d 106 (2014).

31 Id.

32 Id.
- 960 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

He signed the loan agreement on behalf of Reserve, in his 

capacity as manager of Reserve. Reserve, not Robert, was 

obligated under the loan agreement. Robert was not a party to 

the loan agreement, and he had no legally protectable interest 

or right in the controversy that would benefit by the relief to 

be granted.

And for several reasons, Robert cannot prosecute the claim 

on behalf of Reserve. First, Reserve is not a party in this case. 

Second, Reserve is a limited liability company, which is an 

entity distinct from its members.33 Robert, who is not an attorney, may not represent Reserve in courts of this state.34 Finally, 

as we explained earlier, Robert’s personal guaranty expressly 

waived any claim of fraud belonging to Reserve.

Because Robert is not the real party in interest in his 

counterclaim, there is no genuine issue of material fact, and 

the Bank was entitled to judgment as a matter of law as to 

Robert’s counterclaim.

(vi) Declaratory Judgment

Robert filed a motion “for Declaratory Judgment on contractual effect of Personal Guarantees,” together with a motion 

for summary judgment as to the Bank’s complaint. He assigns 

that the district court erred in overruling his motion for a 

declaratory judgment and argues that the court should have 

considered it to be part of his motion for summary judgment. 

The district court declined to address the motion, because 

Robert did not make the request for declaratory judgment in 

his pleadings.

[15] The district court did not err in declining to address 

Robert’s motion for declaratory judgment. In Nebraska, a party 

may not simply move the court for a declaratory judgment.35

33 Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 

(2015).

34 See id.

35 Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).
- 961 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

No such summary proceeding is recognized in Nebraska.36 The 

same case makes it clear that an action for declaratory judgment is framed by a pleading,37 and Robert’s counterclaim did 

not make any attempt to do so.

To the extent that Robert argues the matter was encompassed 

in his motion for summary judgment, we find no merit to his 

argument. The court considered and overruled his motion for 

summary judgment. It therefore resolved Robert’s rights under 

the contract, which was the issue he sought to have determined 

in his “motion” for declaratory judgment.

The district court did not err in granting the Bank’s motion 

for summary judgment as to its claims for breach of guaranty 

and as to Robert’s counterclaim. It also did not err in overruling Robert’s motions for summary judgment and declaratory 

judgment. Accordingly, we affirm the district court’s summary 

judgment order.

(c) Failure to Vacate

Finally, Robert assigns that the district court erred in overruling his motion to vacate the summary judgment order. He 

argues that the district court should have vacated the order, 

because “§ 25-1315(1) . . . requires a non-final order to be 

written in such a way it can be modified. The . . . order was 

not written to include or consider the effect of future rulings in 

the matter and therefore must be vacated.”38

We digress to note that Robert’s motion to vacate addressed 

only the summary judgment order. Thus, his motion did not 

address the orders overruling objections to execution or garnishments. Because Robert limited his motion in that way, the 

district court was not asked to vacate these other orders. An 

issue not presented to or passed on by the trial court is not 

36 Id.

37 See id.

38 Brief for appellant in case No. S-15-872 at 39.
- 962 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

appropriate for consideration on appeal.39 Thus, in considering this assignment of error, we are limited by the scope of 

Robert’s motion.

Robert relies on Murry Constr. Servs. v. Meco-Henne 

Contracting40 to support his argument. In that case, the Nebraska 

Court of Appeals stated: “It is our duty to dismiss appeals for 

lack of jurisdiction and to direct the trial court to expunge from 

its records actions or orders which are not valid.”41

Robert’s reliance on Murray Constr. Servs. is misplaced. 

The rule in that case applies when an order is invalid under 

§ 25-1301, which requires that a judgment be signed by the 

court and file stamped and dated by the clerk of the court. 

Here, the Court of Appeals did not conclude that the summary judgment order was invalid under § 25-1301. Rather, 

it concluded that it lacked jurisdiction because the summary 

judgment order did not adjudicate the cross-claim and, thus, 

did not constitute a final judgment under § 25-1315(1). Murray 

Constr. Servs. does not affect the validity of the summary judgment order.

The summary judgment order was not invalid. Rather, as we 

explained above, at the time of the first appeal, the summary 

judgment order simply was not yet part of a judgment and, 

thus, was not yet appealable. Therefore, we affirm the district 

court’s order overruling Robert’s motion to vacate the summary judgment order.

2. Second Appeal (No. S-15-512)

[16] Bill and Rebecca filed this appeal from the district 

court’s orders overruling their objections to execution and 

garnishments. Although they appeared with counsel before the 

39 Aldrich v. Nelson, 290 Neb. 167, 859 N.W.2d 537 (2015).

40 Murray Constr. Servs. v. Meco-Henne Contracting, 10 Neb. App. 316, 633 

N.W.2d 915 (2001).

41 Id. at 318, 633 N.W.2d at 916.
- 963 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

district court, they are self-represented in this court. We have 

frequently stated that a self-represented litigant will receive 

the same consideration as if he or she had been represented by 

an attorney, and, concurrently, that litigant is held to the same 

standards as one who is represented by counsel.42

Bill and Rebecca argue that the district court erred in overruling their objections, because “[a]ny order issued for enforcement of a statutorily deficient non-appealable, non-final order 

is invalid and void.”43 Their argument lacks some precision. 

But as we understand it, they argue that because the summary 

judgment order was not a “judgment” within the meaning of 

§ 25-1315, the execution and garnishments were void. They 

did not raise this argument below.

(a) General Law on Premature 

Execution or Garnishment

[17] We have long held that a garnishment in aid of execution issued before judgment is without jurisdiction and void, 

and not merely irregular.44 These cases arose under an earlier 

version of what is now codified as Neb. Rev. Stat. § 25-1056 

(Reissue 2008), which governs garnishments after judgment.45

The garnishment proceeding must be supported by a “judgment in esse,”46 that is, a judgment “[i]n actual existence” or, 

literally, “in being.”47 Thus, the judgment must be in existence 

before a garnishment in aid of execution. And even if there is 

a judgment which is later reversed, the “garnishment becomes 

42 See, e.g., Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015) 

(referring to self-represented litigant as “pro se litigant”).

43 Brief for appellants in case No. S-15-512 at 2.

44 See, Whitcomb v. Atkins, 40 Neb. 549, 59 N.W. 86 (1894); Clough v. Buck, 

6 Neb. 343 (1877).

45 See id.

46 See Clough v. Buck, supra note 44, 6 Neb. at 347 (emphasis in original).

47 Black’s Law Dictionary 895 (10th ed. 2014).
- 964 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

wholly dissolved, for there is nothing left to support either the 

one or the other.”48

[18] Although we have not found a Nebraska case directly 

on point, it appears that the same rule applies to an execution 

issued without a judgment. The general rule, in the absence 

of a statutory provision to the contrary, is that an execution 

issued without a judgment to support it is void.49 The Arizona 

Supreme Court stated that “an execution issued without a 

judgment to support it is void, no authority is conferred upon 

the officer to whom it is directed, and even if a judgment is 

subsequently obtained, it will not have a retroactive effect so 

as to validate the execution.”50 And a Missouri court recited its 

law that “‘[e]nforcement of a judgment by execution supposes 

that the judgment is not merely interlocutory, but final.’”51

This rule seems consistent with our statutes.52 And we have 

held that a proceeding in aid of a satisfied judgment was 

a nullity.53

It seems clear that before enactment of § 25-1315, the 

summary judgment order would have been considered a judgment as between the Bank and the Watsons. Federal Land 

Bank v. McElhose54 is instructive despite its reliance upon 

48 Clough v. Buck, supra note 44, 6 Neb. at 347.

49 30 Am. Jur. 2d Executions § 55 (2005).

50 Jackson v. Sears, Roebuck and Co., 83 Ariz. 20, 21-22, 315 P.2d 871, 872 

(1957).

51 State ex rel. Lumber Mut. Ins. Co. v. Ohmer, 131 S.W.3d 872, 874 (Mo. 

App. 2004).

52 See, § 25-1056 (when judgment has been entered and creditor has filed 

affidavit, garnishment summons shall issue); Neb. Rev. Stat. § 25-1501.01 

(Cum. Supp. 2014) (person having judgment rendered by district court 

may request clerk of court to issue execution); Neb. Rev. Stat. § 25-1504 

(Reissue 2008) (land and tenements in county bound for satisfaction of 

judgment when entered on judgment record, goods and chattels bound 

from seizure in execution).

53 Yeiser v. Cathers, 73 Neb. 317, 102 N.W. 612 (1905).

54 Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295 (1986).
- 965 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

obsolete procedures for rendition and entry of judgment. A 

first pronouncement, followed by a trial docket entry on the 

same day, “finally determined the rights of the parties and 

constituted the rendition of a [judgment].”55 We held that this 

judgment was final and appealable despite the later entry of 

another judgment that partially contradicted the first judgment. We observed that the “confusion presented by this 

case can be avoided if trial courts will, as they should, limit 

themselves to entering but one final determination of the 

rights of the parties in a case.”56 And to deal with another 

aspect of the multiple judgments problem, we later stated that 

a trial court should defer entering a default judgment against 

one of multiple defendants where doing so could result in 

inconsistent and illogical judgments following determination on the merits as to the defendants not in default.57 And 

in that case, we overruled two older cases permitting default 

judgments to stand against one jointly liable defendant while 

another defendant was adjudged not liable after a trial. The 

Legislature adopted § 25-1315 at the next session after that 

case was decided.

(b) Appellate Jurisdiction

[19] But before we can consider whether the adoption 

of § 25-1315 leads to the conclusion that Bill and Rebecca 

advance, we must consider whether we have jurisdiction over 

the second appeal. Before reaching the legal issues presented 

for review, it is the power and duty of an appellate court to 

determine whether it has jurisdiction over the matter before it, 

irrespective of whether the issue is raised by the parties.58 And 

the question of our jurisdiction is not a simple matter.

55 Id. at 451, 384 N.W.2d at 297.

56 Id. at 452, 384 N.W.2d at 298.

57 State of Florida v. Countrywide Truck Ins. Agency, 258 Neb. 113, 602 

N.W.2d 432 (1999).

58 In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).
- 966 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

[20] For an appellate court to acquire jurisdiction over an 

appeal, there must be a final order or final judgment entered 

by the court from which the appeal is taken.59 Our jurisdiction 

depends upon the proper classification of the orders overruling 

objections to execution and garnishment.

We are hampered somewhat by the state of the record. It 

does not include any praecipes for execution or garnishment, 

any writs of execution or garnishment, or any returns to any 

such writs. Thus, all we can discern from the record is that 

such writs were issued prior to the entry of judgment. At the 

hearing on the objections, the parties’ arguments appear to 

be premised upon a belief that the summary judgment order 

was susceptible of execution or garnishment. But that hearing took place before the Court of Appeals dismissed the 

first appeal.

It is clear that the second appeal was not taken from a final 

judgment. We have already determined that the district court’s 

series of orders did not form a judgment until it dismissed 

Shona’s cross-claim in August 2015, more than 2 months after 

Bill and Rebecca filed their notice of appeal in the second 

appeal. And their notice of appeal did not relate forward to the 

August entry of judgment.60 We turn to the other possibility—a 

final order.

[21] Our jurisdiction depends upon whether the June 8, 2015, 

orders were “final orders.” Under Neb. Rev. Stat. § 25-1902 

(Reissue 2008), the three types of final orders which may be 

reviewed on appeal are (1) an order which affects a substantial 

right in an action and which in effect determines the action and 

prevents a judgment, (2) an order affecting a substantial right 

made during a special proceeding, and (3) an order affecting 

a substantial right made on summary application in an action 

59 State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015).

60 See In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33, 

680 N.W.2d 142 (2004).
- 967 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

after a judgment is rendered.61 For convenience, we refer to 

these as type “1,” “2,” or “3” orders. Each type requires that 

the order affect a substantial right. The difference lies in the 

type of proceeding or its effect upon the action.

We have not always used this terminology with precision. 

For example, in one case, we said that an order overruling an 

objection to a debtor’s examination was “made in a special 

proceeding.”62 But we also said that the order was “made upon 

a summary application in an action after judgment therein.”63

Thus, we intermingled terminology from types 2 and 3. We 

perpetuated this confusion in a later case.64

One thing is clear—the orders overruling objections to execution and garnishments were not type 1 final orders. To be a 

type 1 final order, it must dispose of the whole merits of the 

case and leave nothing for the court’s further consideration.65

These orders did neither. They occurred prior to judgment. And 

they did not prevent the judgment, which followed upon the 

dismissal of the cross-claim.

We conclude that we must classify the proceedings before 

the district court as summary applications in an action after 

judgment is rendered. Thus, it would necessarily follow that 

the district court’s orders would be type 3 final orders. The 

anomaly, of course, is that no “judgment” had actually been 

rendered. Nonetheless, the Bank was pursuing an execution 

and a garnishment in aid of execution, both of which necessarily follow a judgment.

61 State v. Harris, 292 Neb. 186, 871 N.W.2d 762 (2015).

62 Clarke v. Nebraska Nat. Bank, 49 Neb. 800, 802, 69 N.W. 104, 104 

(1896).

63 Id.

64 Bourlier v. Keithley, 141 Neb. 862, 865, 5 N.W.2d 121, 123 (1942) (“[a] 

proceeding in aid of execution is a special proceeding made upon a 

summary application in an action after judgment”).

65 See Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
- 968 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

[22-24] And the orders affected substantial rights. A substantial right under § 25-1902 is an essential legal right.66

A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim 

or defense that was available to an appellant before the 

order from which an appeal is taken.67 The orders eliminated 

the Watsons’ objections to the execution and garnishments. 

Moreover, substantial rights under § 25-1902 include those 

legal rights that a party is entitled to enforce or defend.68

The execution and garnishments authorized the seizure of 

property or money that would otherwise have remained in the 

Watsons’ ownership and control. Thus, the orders affected a 

substantial right.69

Because the second appeal was timely filed after the entry 

of the orders overruling objections to execution and garnishments, we have jurisdiction of the second appeal.

(c) Validity of Orders on Execution 

and Garnishments

Having concluded that we have jurisdiction of the second 

appeal, we turn to the dispositive issue. The execution and garnishments in aid of execution were issued prior to a final judgment under §§ 25-1301 and 25-1315. We conclude that these 

execution and garnishment proceedings were void.

The key is the second sentence of § 25-1315(1), which 

states:

In the absence of such determination [that there is no 

just reason for delay] and direction [for the entry of 

66 Id.

67 Id.

68 Id.

69 See In re Estate of McKillip, 284 Neb. 367, 375, 820 N.W.2d 868, 876 

(2012) (concluding that “the rights of the devisees to retain the real 

estate in kind is a substantial right that is affected by the order to sell the 

property”).
- 969 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

judgment], any order or other form of decision, however 

designated, which adjudicates fewer than all the claims 

or the rights and liabilities of fewer than all the parties 

shall not terminate the action as to any of the claims or 

parties, and the order or other form of decision is subject 

to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all 

the parties.

(Emphasis supplied.) Most of our cases involving § 25-1315 

have addressed attempts to invoke the authority granted by the 

first sentence.70 Here, we confront a form of decision characterized as a judgment but which failed to dispose of a defendant’s cross-claim.

The pending cross-claim prevented the summary judgment 

order from serving as a final judgment. We have previously 

written in depth regarding the purpose of the statute with 

regard to the “‘salutary goal of certainty with respect to jurisdiction of appeals.’”71

[25] It seems equally fundamental that an interlocutory 

order granting summary judgment on fewer than all of the 

claims in an action cannot serve as the judgment required for 

an execution or garnishment in aid of execution. The plain 

language of § 25-1315(1) makes it clear that the form of the 

order cannot control. Here, the summary judgment order stated 

that “[j]udgment is entered in favor of the [Bank and] against 

the [Watsons] jointly and severally . . . .” The statute requires 

explicit adjudication of all of the claims and of all of the rights 

and liabilities of all of the parties. The summary judgment 

order did not do so.

70 See, e.g., Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 

391 (2015); Cerny v. Todco Barricade Co., supra note 7; Keef v. State, 262 

Neb. 622, 634 N.W.2d 751 (2001).

71 Malolepszy v. State, supra note 6, 270 Neb. at 106, 699 N.W.2d at 391 

(quoting Federal Sav. & Loan Ins. Corp. v. Huff, 851 F.2d 316 (10th Cir. 

1988)).
- 970 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

The same purpose of providing certainty applies to a judgment which will be sufficient to support the issuance of final 

process. A writ of execution is recognized as a final process of 

a court for the enforcement of a judgment.72 If an interlocutory 

order remains subject to change, it cannot support the court’s 

final process. The officers required by law to execute a court’s 

process need certainty that the process is supported by a final 

judgment. And this clarity is equally important to the parties 

and the general public.

[26] We have not found any federal cases suggesting otherwise. Since § 25-1315(1) is substantially similar to Fed. R. 

Civ. P. 54(b) (Rule 54(b)), we will look to federal cases construing Rule 54(b) for guidance.73 In a case from the District 

of Columbia Circuit, a party was “confronted by a judgment 

non-final in terms of Rule 54(b) but ostensibly the predicate 

for an execution.”74 The court observed that “[a]n execution 

ordinarily may issue only upon a final judgment,”75 and it 

said: “We think the role Rule 54(b) plays with reference to the 

finality of a judgment for purposes of appeal has implications 

as regards its finality for purposes of execution as well.”76 It 

noted that the lower court had not made a Rule 54(b) determination, and it stated that “the more likely conclusion upon 

the merits of the appeal is that unless and until [the Rule 54(b) 

determination] is done [the appellee] has no judgment upon 

which an execution may issue prior to adjudication of the case 

in its entirety.”77 It therefore denied the appellee’s motion for 

72 See State, ex rel. Warren, v. Raabe, 140 Neb. 16, 299 N.W. 338 (1941).

73 Bailey v. Lund-Ross Constructors Co., 265 Neb. 539, 657 N.W.2d 916 

(2003).

74 Redding & Company v. Russwine Construction Corporation, 417 F.2d 721, 

724 (D.C. Cir. 1969).

75 Id. at 727.

76 Id.

77 Id.
- 971 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

a supersedeas bond as a condition of the stay of execution 

issued during the pendency of the appeal.78 In another case, 

a Second Circuit court noted that “the validity of [an] execution order . . . depends upon the finality of the earlier default 

judgments which that execution order is intended to satisfy.”79

Because the order was susceptible of two interpretations, one 

consistent with finality and the other not, the court remanded 

the matter for entry of a new judgment.80

Although we have read the district court’s orders together 

in order to determine the existence of a final judgment, this 

should not be necessary. Where a series of orders, taken 

together, would constitute a final judgment, we encourage the 

trial courts to make the judgment explicit in the last order of 

the series.

[27,28] Although Bill and Rebecca did not raise this precise 

argument before the district court, we conclude that we can 

consider it. Appellate courts do not generally consider arguments and theories raised for the first time on appeal.81 But 

it is a longstanding rule in Nebraska that a void order may 

be attacked at any time in any proceeding.82 We have already 

recited the case law making it clear that executions and garnishments in aid of execution issued prior to judgment are 

void. The district court’s orders overruling objections to the 

void orders are likewise void. The summary judgment order 

was then only an interlocutory order. At that time, it did not 

78 See, also, Gerardi v. Pelullo, 16 F.3d 1363 n.13 (3d Cir. 1994) (noting that 

“a judgment that is not otherwise final, i.e., usually meaning final as to all 

issues and parties, is not subject to execution until the certification under 

Rule 54(b) is entered”).

79 International Controls Corp. v. Vesco, 535 F.2d 742, 745 (2d Cir. 1976).

80 International Controls Corp. v. Vesco, supra note 79.

81 Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).

82 See, Kuhlmann v. City of Omaha, 251 Neb. 176, 556 N.W.2d 15 (1996); 

Lammers Land & Cattle Co. v. Hans, 213 Neb. 243, 328 N.W.2d 759 

(1983).
- 972 -

Nebraska Advance Sheets

293 Nebraska Reports

CATTLE NAT. BANK & TRUST CO. v. WATSON

Cite as 293 Neb. 943

support the issuance of final process, and Bill and Rebecca 

could raise this issue for the first time on appeal.

Based on the record before us in the second appeal, we 

determine that the writs of execution and garnishment issued 

before the entry of a final judgment, and the proceedings had 

for their enforcement, were void. We therefore vacate the final 

orders overruling the Watsons’ objections to execution and 

garnishments.

But that is the full extent of the relief we can provide on this 

record. In our decision regarding the Watsons’ third appeal, we 

have affirmed a judgment sufficient for the issuance of final 

process. As we have already explained, the later judgment does 

not have a retroactive effect to validate the void writs of execution and garnishment. We express no opinion regarding any 

action or process available to the Watsons regarding the void 

execution and garnishments, or regarding the effect, if any, of 

the Bank’s later judgment on such action or process.

VI. CONCLUSION

For the reasons discussed above, in case No. S-15-872, we 

affirm the district court’s order granting the Bank’s motions 

for summary judgment as to its claims for breach of guaranty 

and as to Robert’s counterclaim. We also affirm the district 

court’s order overruling Robert’s motion to vacate. In case No. 

S-15-512, we vacate the district court’s orders overruling the 

Watsons’ objections to execution and garnishments.

Final orders in No. S-15-512 vacated.

Judgment in No. S-15-872 affirmed.

Miller-Lerman and Stacy, JJ., not participating.